Google says Hotfile is eligible for same DMCA protection as YouTube

Google has stepped up to the plate for Hotfile, arguing that film studios …

With file sharing site Hotfile facing an attempt by film studios to shut it down, Google has argued in an amicus brief that Hotfile should be eligible for the same type of legal protection that allowed the Google-owned YouTube to fend off the famous copyright infringement lawsuit filed by Viacom.

Google's brief (via TorrentFreak) says the company is not taking a position on what the final outcome of the Hotfile case should be, but states that the movie studios' interpretation of the DMCA (Digital Millennium Copyright Act) would significantly weaken the DMCA's safe harbor protections that have protected many of the Internet's most popular and vital websites.

"A wide variety of online services, including Amazon.com, eBay, and YouTube... have all been held protected by the DMCA against potentially crippling infringement claims," Google wrote in a filing in US District Court in Southern Florida. "Other mainstays of the modern Internet, such as Facebook, Twitter, and Wikipedia, likewise rely on the DMCA safe harbors in their everyday operations. Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place."

Film studios Disney, 20th Century Fox, Universal, Columbia, and Warner Bros. argued that Hotfile induced users to commit copyright infringement, disqualifying the site from safe harbor protections. The studios cited the MGM vs. Grokster Supreme Court decision from 2005, saying the case "holds that a defendant who operates a service with the 'object' that it be used to infringe is liable for the resulting acts of infringement by third parties." Inducement is also an important issue in the case regarding Megaupload, as we've explained in previous coverage.

Google objected to this argument, saying that the DMCA should protect defendants against claims of both direct infringement and "secondary infringement" such as inducement. "As in Viacom, the same facts that demonstrate a defendant’s entitlement to the safe harbors may help establish that it is not an inducer," Google wrote. "But it would be a significant mistake to hold, as plaintiffs urge, that a finding of secondary liability [such as inducement] in and of itself disqualifies a service provider from the safe harbor."

The Google brief seems somewhat contradictory, arguing in one part that the safe harbor question should be treated separately from the inducement question, and in another that a service provider who qualifies for DMCA safe harbor "is protected against damages liability for all forms of copyright infringement," including inducement.

Google: "Hotfile did exactly what the DMCA demands"

Although the company claimed not to take a position on the case's final outcome, Google defended Hotfile against some of the specific infringement allegations.

"Plaintiffs make much of the fact that Hotfile, at least for a time, apparently removed only the specific download link identified as infringing in a given DMCA takedown notice, and did not take the additional step of blocking other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue," Google's brief states. "But, in this respect, Hotfile did exactly what the DMCA demands, and plaintiffs’ takedown notices cannot be used to charge the service with knowledge of allegedly infringing material that those notices did not specifically identify."

Hotfile's warning to users about uploading copyrighted files

Google wrote that a service provider can only lose DMCA safe harbor protection if it has "actual knowledge" of infringing material on its systems and fails to remove it, or if it receives financial benefit directly attributable to infringing activity that the service provider was aware of and failed to stop. The DMCA does not require service providers to monitor services for possible infringement, but they do have to act if notified of infringement, Google said.

Google's brief was filed on March 12. The film studios issued their response yesterday, saying the court should not allow Google's brief to be considered during the case. The brief "merely duplicates" Hotfile's position, and seems designed to help Hotfile circumvent the page limits imposed to prevent the sides from filing arguments that are too long, the studios said. Google is also trying to help itself in pending litigation, including Viacom's appeal of the YouTube ruling, the studios wrote.

"Google's proposed brief appears to be part of a systematic effort by Google, itself a defendant in ongoing copyright infringement cases, to influence the development of the law to Google's own advantage—as well as an effort by Hotfile (whose counsel also represents Google) to circumvent its page limits," the studios wrote. "Although Google purports not to take a position regarding summary judgment here, Google unmistakably seeks a ruling against plaintiffs."

This is just an effort to squelch anything that gets in the way of the MAFIAA Agenda.I do not buy into their lies nor am I currently supporting any Products that come out of Big Content.These guys wanted War and they got it.I have since "Censored" them from my wallet and am perfectly willing to pay for INDIE NON-BIG CONTENT Films, books, and music.

The film studios issued their response yesterday, saying the court should not allow Google's brief to be considered during the case. The brief "merely duplicates" Hotfile's position, and seems designed to help Hotfile circumvent the page limits imposed to prevent the sides from filing arguments that are too long, the studios said. Google is also trying to help itself in pending litigation, including Viacom's appeal of the YouTube ruling, the studios wrote.

Reads as: The Film Industry does not want The Technology Industry interfering with picking on a little guy so that they can create a precident to fuck over the rest of The Technology Industry.

It's kinda strange to see youtube saying that the dmca protection should apply as let the studios police thier site and don't give their users those same dmca protections.

Yeah, that's what happens when you get hamstrung first. Make no mistake, if another company managed to avoid the full wrath of the MAFIAA as well as YouTube did, they would be just as handcuffed as YouTube is.

I don't understand how a web site can induce me to commit a copyright violation.

In legalese there is the concept of "attractive nuisance". Swimming pools are considered an attractive nuisance and it is the responsibility of the pool owner to maintain a fence/gate to keep other people's children away or he will be helded accountable for the actions of the children if they result in bodily injury or death.

So...while the music industry seeks to warp the legal system to their own advantage, they're angry because Google's trying to warp the legal system to it's own advantage? Nice.

C Boy wrote:

In legalese there is the concept of "attractive nuisance". Swimming pools are considered an attractive nuisance and it is the responsibility of the pool owner to maintain a fence/gate to keep other people's children away or he will be helded accountable for the actions of the children if they result in bodily injury or death.

I always thought that was BS. If they don't want their kids drowning, keep them the hell out of my pool. A good start would be to teach the little brats to respect others' property.

It's like the idea that because something wasn't _locked up_, it's your fault that it got stolen.

Perhaps we'll slowly see other "search engine" giants step up to the plate and add a different perspective to this. Considering they all link to content in the first place, unless of course they wish to be censored at some point in the future. That'll be the direction the studios will take when they run out of targets (good luck with that part)

I think Google is fighting for Google. Copyrighted materials are often found via links stored on Google's servers. Attempting to down Google is only a few more step away.

Google is acting in their own self interest, but that self interest is also in the self interest of practically everyone. Google benefits from the internet kicking ass. We benefit from the internet kicking ass. By undermining the core principles of safe harbor provisions, the MPAA is trying to make the internet kick less ass. Truth be told, Google is likely even acting in the benefit of the MPAA's members, they just are too incompetent to realize it.

Google/YouTube has already bent over and taken it from the MPAA and RIAA, by NOT using the DMCA anymore. Instead, they contractually agreed to permit the MPAA/RIAA unfettered claims to either pull down or claim ownership/revenue for any video on YouTube.

Perhaps we'll slowly see other "search engine" giants step up to the plate and add a different perspective to this. Considering they all link to content in the first place, unless of course they wish to be censored at some point in the future. That'll be the direction the studios will take when they run out of targets (good luck with that part)

This has been a question plaguing me for a while now: why haven't the other tech giants stepped up against these dumbasses running amok to destroy technology and communications as we know them and how they should be?

All sites with forums or user-generated content are liable for this sort of tyrrany at their bridge. Every data storage company (including physical storage) may be considered as a threat to the MAFIAA (hint: they have been before). Why is it that there are so few companies with balls?

Google does some fucked up things; I'm not always on their side, but this is one case that exemplifies why I have a definitive lean towards them.

I don't understand how a web site can induce me to commit a copyright violation.

In legalese there is the concept of "attractive nuisance". Swimming pools are considered an attractive nuisance and it is the responsibility of the pool owner to maintain a fence/gate to keep other people's children away or he will be helded accountable for the actions of the children if they result in bodily injury or death.

I think "attractive nuisance" only applies to landowners and children (your example is canonical). Do you have a case where this doctrine was applied outside of these constraints?

So...while the music industry seeks to warp the legal system to their own advantage, they're angry because Google's trying to warp the legal system to it's own advantage? Nice.

C Boy wrote:

In legalese there is the concept of "attractive nuisance". Swimming pools are considered an attractive nuisance and it is the responsibility of the pool owner to maintain a fence/gate to keep other people's children away or he will be helded accountable for the actions of the children if they result in bodily injury or death.

I always thought that was BS. If they don't want their kids drowning, keep them the hell out of my pool. A good start would be to teach the little brats to respect others' property.

It's like the idea that because something wasn't _locked up_, it's your fault that it got stolen.

There's a bit of truth there: someone I know had her car "borrowed" by someone who was visiting her apartment. The person picked the keys up off the coffee table, and took the car without permission. The police wouldn't take a stolen vehicle report, stating that because the person was allowed into the house, it was a civil matter, not a criminal one (this is in Oregon, YMMV in other states).

[edit] Disclaimer: There may be more to the story than I know, since I wasn't a direct participant.

The law about it not being theft if you didn't lock your belongings up is pretty bs personally. We live in the sticks and don't have any neighbors for a few miles. Some guy wrecked his car trying (and succeeding to hit our mailbox). Then he stole our pickup which had the keys left in it and went on a joy ride with it. The cops found it at his apartment the next day, and he only got charged with "operating a vehicle without the owners consent." It's nice that there's just the expectation of stealing...

Quote: "Plaintiffs make much of the fact that Hotfile, at least for a time, apparently removed only the specific download link identified as infringing in a given DMCA takedown notice, and did not take the additional step of blocking other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue," Google's brief states.

The *AA speaks: "Of all the nerve, Hotfile! The only way you'll remove infringing content is if we PAY someone to tell you to remove infringing content? You should do that without us telling you to, and contrary to the wishes of your own customers, because -- well, because -- because we're special people, we copyright owners!"

The law about it not being theft if you didn't lock your belongings up is pretty bs personally. We live in the sticks and don't have any neighbors for a few miles. Some guy wrecked his car trying (and succeeding to hit our mailbox). Then he stole our pickup which had the keys left in it and went on a joy ride with it. The cops found it at his apartment the next day, and he only got charged with "operating a vehicle without the owners consent." It's nice that there's just the expectation of stealing...

Leaving your house or car unlocked is one thing people do it even in nice populated areas when they aren't home. Leaving the keys in the vehicle is just asking for trouble no matter where you live. Although I do agree that he should of been charged with stealing.

If anybody wants to start a petition against the copyright holders and supporting the rest of the tech industry (hotfile and google as examples only) so that said petition can be used by legislators to promote changes in law regarding this matter then lots of people can democratically participate in changing what they dont approve of.We can work together in changing the present sorry state of affairs.Im just not good at writing petitions so if any one is willing to start it ill sign.

I don't understand how a web site can induce me to commit a copyright violation.

If they are willing to give you free service or cash back because of the number of downloads your file gets.

I believe you can get ad money for your youtube-uploads as well. That would give you money proportional to the number of views. It would be weird to argue that sharing profit with the users that drives the traffic (and therefore actually has a big part in creating your profit) automatically would disqualify you from dmca.

I guess they have more evidence on "inducing" infringement than just this, but it looks like they got less of it this time. MU might have been quite bold, but hotfile is much less so as far as I can tell (?), and youtube even less.

Intentionally or not all these legal problems and the uncertainty makes it harder and less attractive to do business around anything but "safe" content from the big providers. Modern tech makes it really cheap to manage massive amounts of stuff, modern law and policy does not seem to care that it's about to make it expensive again.

So what's different between Megaupload and Hotfile? Why didn't Google say anything then? Is it because of the specific way they are exploiting the DMCA in this case?

Belive it or not there is huge difference. Megaupload was allegedly corrupt to the very core. Kim Dot C@#! seemed like a guy who didn't care and just wanted the money.

Hotfile from what I've seen, experienced and herd is very compliant with the DMCA. They remove/block files very fast. Even legit legal ones by accident. Often within days. You ever see a file listed there, then theres a 70% change its no longer there.

That being said I guess I see the grounds for frustration. The copyright teams have to play "wack a mole" sending take down notices for alot of things and thats time consuming. So I guess if they want to be completely legit they could implement a smart copyright system that scans file check-sums. And removes them thus eliminating needs for sending thousands of DMCA take down notices etc.